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MARINE

INSURANCE AND

SMOOTH SELLING



INDEX

1 INTRODUCTION

2 INDIAN MARINE INSURANCE ACT 1963

3 TYPES OF MARINE INSURANCE

4 PARTIES

5 THE MARINE INSURANCE CONTRACT

6 LOSSES AND MEASURE OF INDEMNITY

7 WARRENTIES

8 PRESCRIPTION PERIODS AND NOTICE

REQUREMENT

9 UNDER INSURANCE OVER INSURANCE

AND DOUBLE INSURANCE

10 MARKETING STRATEGY

11 E-MARKETING

12 BIBLIOGRAPHY



Introduction

History

Origins date back to at least 215 B.C

.

First codification was the English Marine Insurance Act of 1906. This is the act upon

which all subsequent acts are based, including the Canadian statutes. This was a codification ofexisting jurisprudence and practice. The English Act was probably received in Canada as

Canadian law.

Governing Law/Legislation

Although the law of insurance is generally thought to come within Provincial jurisdictionunderthe heading “property and civil rights” in the Constitution Act, marine insurance is now

understood to be a matter governed by Canadian Maritime Law (Triglav v Terrasses Jewellers,

[1983] SCR 283).

Federal Marine Insurance Act

Following the decision in Triglav v Terrasses Jewellers, the Federal Parliament enacted the

Federal Marine Insurance Act, S.C. 1993, c.22. This act is modelled on the English Marine

Insurance Act of 1906.

Provincial Insurance Acts

Prior to the enactment of the Federal Marine Insurance Act many of the provinces

had their own acts governing marine insurance. The British Columbia statute is the Insurance(Marine) Act, RSBC 1996 c. 230. These provincial statutes are also modelled on the English

Marine Insurance Act of 1906 and are therefore not substantially different from the Federal Act.

The various provinces also have insurance statutes of general application which purport to apply

to marine insurance. The B.C. statute is the Insurance Act, RSBC 1996, c.226. Part 2 of this Act

contains various provisions of general application. Subject to certain specified exceptions

specified in section 3(b), these provisions purport to apply to contracts of marine insurance. The

B.C. Insurance Act purports to regulate such things as:

• contents of a policy

• appraisals

• relief against forfeiture



• waiver

• misrepresentation

• payment of premiums

• time for payment of claims

• limitation periods, and

• third party claims against insurers

Ordon v Grail

Although the various provincial acts have not been repealed and remain in force, the

decision of the Supreme Court of Canada in Ordon v Grail casts serious doubt on whether they

have any application to contracts of marine insurance. There may, however, be an exception forlimitation periods. (see s.10 below)

Natur e and Scope of M arine Insurance

The nature and scope of marine insurance is determined by reference to s. 6 of the Marine

Insurance Act and by the definitions of “marine adventure” and “maritime perils”.

It is a contract of indemnity but the extent of the indemnity is determined by the contract. It

relates to losses incidental to a marine adventure or to the building, repairing or launching of aship. A marine adventure is any situation where the insured property is exposed to maritime

perils. Maritime perils are perils consequent on or incidental to navigation.

MIA

6. (1) A contract of marine insurance is a contract whereby the insurer undertakes

to indemnify the insured, in the manner and to the extent agreed in the contract,against

(a) losses that are incidental to a marine adventure or an adventure analogous to amarine adventure, including losses arising from a land or air peril incidental to

such an adventure if they are provided for in the contract or by usage of the trade; or

(b) losses that are incidental to the building, repair or launch of a ship.

(2) Subject to this Act, any lawful marine adventure may be the subject of a contract.

“Marine Adventure

"marine adventure" means any situation where insurable property is exposed to

maritime perils, and includes any situation where



• the earning or acquisition of any freight, commission, profit or other pecuniary benefit, or thesecurity for any advance, loan or disbursement, is endangered by the exposure of insurable

property to maritime perils, and

(b) any liability to a third party may be incurred by the owner of, or other personinterested in or responsible for, insurable property, by reason of maritime perils

“Maritime Perils”

"maritime perils" means the perils consequent on or incidental to navigation,

including perils of the seas, fire, war perils, acts of pirates or thieves, captures,seizures, restraints, detainments of princes and peoples, jettisons, barratry and allother perils of a like kind and, in respect of a marine policy, any peril designated

by the policy

;



India Marine Insurance Act 1963

18th April, 1963

NO.11 OF 1963

An Act to codify the law relating to marine insurance.

BE it enacted by Parliament in the Fourteenth Year of the Republic of India as follows:-

1.Short title and commencement.- (1) This Act may be called the Marine Insurance Act,

1963.(2) It shall come into force on such date {1-8-1963: vide Notification No.S.O.1925, dated8-7-1963, see Gazette of India, Pt.II, Sec.3(ii).P.2183.} as the Central Government may,by notification in the Official Gazette, appoint.2.Definitions.- In this Act, unless the context otherwise requires,-

(a) "contract of marine insurance" means a contract of marine insurance as defined bysection

(b) "freight" includes the profit derivable by a ship-owner from the employment of hisship to carry his own goods or other movables, as well as freight payable by a thirdparty, but does not include passage money;

(c) "insurable property" means any ship, goods or other movables which are exposed tomaritime Perils;

(d) "marine adventure" includes any adventure where-

(i) any insurance property is exposed to maritime perils;

(ii) the earnings or acquisition of any freight, passage money, commission, profit orother pecuniary benefit, or the security for any advances, loans, or disbursements isendangered by the exposure of insurable property to maritime perils;

(iii) any liability to a third party may be incurred by the owner of, or other personinterested in or responsible for, insurable property by reason of maritime perils;



(e) "maritime perils" means the perils consequent on, or incidental to, the navigation ofthe sea, that is to say, perils of the seas, fire, war perils, pirates, rovers, thieves,captures, seizures, restraints and detainments of princes and peoples, jettisons,barratry and any other perils which are either of the like kind or may be designated by

the policy;

(f) "movables" means any movable tangible property, other than the ship, and includesmoney, valuable securities and other documents;

(g) "policy" means a marine policy;(h) "ship" includes every description of vessel used in navigation;

(i) "suit" includes counter-claim and set-off.

MARINE INSURANCE

3.Marine Insurance defined.-A contract of marine insurance is an agreement wherebythe insurer undertakes to indemnify the assured, in the manner and to the extentthereby agreed, against marine losses, that is to say, the losses incidental to marineadventure.

4.Mixed sea and land risks.- (1) A contract of marine insurance may, by its expressterms, or by usage of trade, be extended so as to protect the assured against losses oninland waters or on any land risk which may be incidental to any sea voyage.

(2) Where a ship in course of building, or the launch of a ship, or any adventureanalogous to a marine adventure, is covered by a policy in the form of a marine policy,the provisions of this Act, in so far as applicable, shall apply thereto, but, except as bythis section provided, nothing in this Act shall alter or affect any rule of law applicable toany contract of insurance other than a contract of marine insurance as by this Actdefined.

Explanation.- 'An adventure analogous to a marine adventure' includes an adventurewhere any ship, goods or other movables are exposed to perils incidental to local orinland transit.5.Lawful marine adventure.- Subject to the provisions of this Act, every lawful marineadventure may be the subject of a contract of marine insurance.6.Avoidance of wagering contracts.- (1) Every contract of marine insurance by way ofwagering is void.

(2) A contract of marine insurance is deemed to be a wagering contract-



(a) where the assured has not an insurable interest as defined by this Act, and thecontract is enteredinto with no expectation of acquiring such an interest; or

(b) where the policy is made "interest or no interest", or "without further proof of interest

than thepolicy itself", or "without benefit of salvage to the insurer", or subject to any other liketerm:Provided that, where there is no possibility of salvage, a policy may be effected withoutbenefit ofsalvage to the insurer.

7.Insurable interest defined.- (1) Subject to the provisions of this Act, every person hasan insurableinterest who is interested in a marine adventure.

(2) In particular a person is interested in a marine adventure where he stands in anylegal or equitable relation to the adventure or to any insurable property at risk therein, inconsequence of which he

may benefit by the safety or due arrival of insurable property, or may be prejudiced byits loss, or by damage thereto, or by the detention thereof, or may incur liability inrespect thereof.

8.When interest must attach.- (1) The assured must be interested in the subject-matterinsured at the time of the loss, though he need not be interested when the insurance iseffected: Provided that, where the subject-matter is insured "lost or not lost", theassured may recover

although he may not have acquired his interest until after the loss, unless at the time ofeffecting the contract of insurance the assured was aware of the loss, and the insurerwas not.

(2) Where the assured has no interest at the time of the loss, he cannot acquire interestby any act or election after he is aware of the loss.

9.Defeasible or contingent interest.- (1) A defeasible interest is insurable, as also is acontingent interest.

(2) In particular, where the buyer of goods has insured them, he has an insurableinterest, notwithstanding that he might, at his election, have rejected the goods, or havetreated them as at the seller's risk, by reason of the latter's delay in making delivery orotherwise.

10.Partial interest.- A partial interest of any nature is insurable.



11.Reinsurance.- (1) The insurer under a contract of marine insurance has an insurableinterest in his risk, and may reinsure in respect of it.

(2) Unless the policy otherwise provides, the original assured has no right or interest inrespect of such reinsurance.

12.Bottomry.- The lender of money on bottomry or respondentia has an insurableinterest in respect of the loan.13.Masters and seamens wages.- The master or any member of the crew of a ship hasan insurable interest in respect of his wages.14.Advance freight.- In the case of advance freight, the person advancing the freighthas an insurable interest, in so far as such freight is not repayable in case of loss.15.Charges of insurance.- The assured has an insurable interest in the charges of anyinsurance which he may effect.

16.Quantum of interest.- (1) Where the subject-matter insured in mortgaged, themortgagor has aninsurable interest in the full value thereof, and the mortgagee has an insurable interestin respect of any sum due or to become due under the mortgage.

(2) A mortgagee, consignee, or other person having an interest in the subject-matterinsured may insure on behalf and for the benefit of other persons interested as well asfor his own benefit.

(3) The owner of insurable property has an insurable interest in respect of the full valuethereof, notwithstanding that some third person may have agreed, or be liable toindemnify him in case of loss.

17.Assignment of interest.- Where the assured assigns or otherwise parts with hisinterest in the subject-matter insured, he does not thereby transfer to the assignee hisrights under the contract of insurance, unless there be an express or implied agreementwith the assignee to that effect.

But the provisions of this section do not affect transmission of interest by operation oflaw.

INSURABLE VALUE

18.Measure of insurable value.- Subject to any express provision or valuation in thepolicy, the insurable value of the subject-matter insured must be ascertained asfollows:-

• In insurance on ship, the insurable value is the value, at the commencement ofthe risk, of the ship including her outfit, provisions, and stores for the officers andcrew, money advanced for seamen's wages, and other disbursements (if any)



incurred to make the ship fit for the voyage or adventure contemplated by thepolicy, plus the charges of insurance upon the whole: The insurable value, in thecase of a steamship, includes also the machinery, boilers, and coals and enginestores if owned by the assured; in the case of a ship driven by power other thansteam includes also the machinery and fuels and engine stores, if owned by the

assured; and in the case of a ship engaged in a special trade, includes also theordinary fittings requisite for that trade:

• In insurance on freight, whether paid in advance or otherwise, the insurable valueis the gross .amount of the freight at the risk of the assured, plus the charges ofinsurance:

(3) In insurance on goods or merchandise, the insurable value is the prime cost of theproperty insured, plus the expenses of and incidental to shipping the charges ofinsurance upon the whole:

(4) In insurance on any other subject-matter, the insurable value is the amount at therisk of the assured when the policy attaches, plus the charges of insurance.

DISCLOSURE AND REPRESENTATIONS19.Insurance is uberrimaefidei.- A contract of marine insurance is a contract basedupon the utmost good faith, and if the utmost good faith, be not observed by eitherparty, the contract may be avoided by the other party.

20.Disclosure by assured.- (1) Subject to the provisions of this section, the assuredmust disclose to the insurer, before the contract is concluded, every materialcircumstance which, is known to the assured, and the assured is deemed to know everycircumstance which, in the ordinary course of business, ought to be known to him.If theassured fails to make such disclosure, the insurer may avoid the contract.

(2) Every circumstance is material which would influence the judgment of a prudentinsurer in fixing the premium, or determining whether he will take the risk.

(3) In the absence of inquiry the following circumstances need not be disclosed, namely:-(a) any circumstance which diminishes the risk;

(b) any circumstance which is known or presumed to be known to the insurer.Theinsurer is presumed to know matters of common notoriety or knowledge, and matterswhich an insurer in the ordinary course of his business as such, ought to know;

(c) any circumstance as to which information is waived by the insurer;

(d) any circumstance which it is superfluous to disclose by reason of any express orimplied warranty.



(4) Whether any particular circumstance, which is not disclosed, be material or not is, ineach case, a question of fact.

(5) The term "circumstance" includes any communication made to, or informationreceived by, the assured.

21.Disclosure by agent effecting insurance.- Subject to the provisions of the precedingsection as to circumstances which need not be disclosed, where an insurance iseffected for the assured by an agent, the agent must disclose to the insurer-(a) every material circumstance which is known to himself, and an agent to insure isdeemed to know every circumstance which in the ordinary course of business ought tobe known by, or to have been communicated to, him, and

(b) every material circumstance which the assured is bound to disclose, unless it comesto his knowledge too late to communicate it to the agent.22.Representations pending Negotiation of contract.- (1) Every material representationmade by the assured or his agent to the insurer during the negotiations for the contract,and before the contract is concluded, must be true.If it be untrue the insurer may avoidthe contract.(2) A representation is material which would influence the judgment of a prudent insurerin fixing the premium, or determining whether he will take the risk.

(3) A representation may be either as to a matter of fact, or as to a matter of expectationor belief.

(4) A representation as to a matter of fact is true, if it be substantially correct, that is tosay, if the difference between what is represented and what is actually correct would notbe considered material by a prudent insurer.

(5) A representation as to a matter of expectation or belief is true if it be made in goodfaith.(6) A representation may be withdrawn or corrected before the contract is concluded

(7) Whether a particular representation be material or not, is, in each case, a question offact.

23.When contract is deemed to be concluded.- A contract of marine insurance isdeemed to be concluded when the proposal of the assured is accepted by the insurer,whether the policy be then issued or not' and for the purpose of showing when theproposal was accepted, reference may be



made to the slip, covering note or other customary memorandum of the contract,although it beunstamped.

THE POLICY

24.Contract must be embodied in policy.- A contract of marine insurance shall not beadmitted in evidence unless it is embodied in a marine policy in accordance with this

Act.The policy may be executed and issued either at the time when the contract isconcluded, or afterwards.

25.What policy must specify.-A marine policy must specify-

(1) the name of the assured, or of some person who effects the insurance on hisbehalf;

(2) the subject-matter insured and the risk insured against;

(3) the voyage, or period of time, or both, as the case may be, covered by theinsurance

(4) the sum or sums insured;

(4) the name or names of insurer or insurers.

26.Signature of insurer.- (1) A marine policy must be signed by or on behalf of the

insurer.(2) Where a policy is subscribed by or on behalf of two or more insurers, eachsubscription, unless the contrary be expressed, constitutes a distinct contract with theassured.27.Voyage and time policies.- (1) Where the contract is to insure the subject-matter atand from, or from one place to another or others, the policy is called a "voyage policy",and where the contract is to insure the subject-matter for a definite period of time, thepolicy is called a "time policy".A contract for both voyage and time may be included inthe same policy.

(2) A time policy which is made for any time exceeding twelve months is invalid.

28.Designation and subject matter.- (1) The subject-matter insured must be designatedin a marine policy with reasonable certainly.

(2) The nature and extent of the interest of the assured in the subject-matter insuredneed not be specified in the policy.



(3) Where the policy designates the subject-matter insured in general terms, it shall beconstrued to apply to the interest intended by the assured to be covered.

(4) In the application of this section regard shall be had to any usage regulating thedesignation of the subject-matter insured.

29.Valued policy.- (1) A policy may be either valued or unvalued.(2) A valued policy is a policy which specifies the agreed value of the subject-matterinsured.

(3) Subject to the provisions of this Act, and in the absence of fraud, the value fixed bythe policy is, as between the insurer and assured, conclusive of the insurable value ofthe subject intended to beinsured, whether the loss be total or partial.

(4) Unless the policy otherwise provides, the value fixed by the policy is not conclusive

for the purpose of determining whether there has been a constructive total loss.30.Unvalued policy.- An unvalued policy is a policy which does not specify the value ofthe subjectmatter insured, but subject to the limit of the sum insured, leaves theinsurable value to besubsequently ascertained, in the manner hereinbefore explained.

31.Floating policy by ship or ships.- (1) A floating policy is a policy which describes theinsurance ingeneral terms, and leaves the name or names of the ship or ships and otherparticulars to be defined by subsequent declaration.

(2) The subsequent declaration or declarations may be made by endorsement on thepolicy, or in other customary manner.

(3) Unless the policy otherwise provides, the declarations must be made in the order ofdispatch or shipment.They must, in the case of goods, comprise all consignments withinthe terms of the policy, and the value of the goods or other property must be honestlystated, but an omission or erroneous declaration may be rectified even after loss orarrival, provided the omission or declaration was made in good faith.

(4) Unless the policy otherwise provides, where a declaration of value is not made untilafter notice of loss or arrival, the policy must be treated as an unvalued policy asregards the subject-matter of that declaration.32.Construction of terms in policy.- (1) A policy may be in the form in the Schedule.(2) Subject to the provisions of this Act, and unless the context of the policy otherwiserequires, theterms and expressions mentioned in the Schedule shall be construed as having thescope andmeaning assigned to them in the Schedule.



33.Premium to be arranged.- (1) Where in insurance is effected a premium to bearranged, and noarrangement is made, a reasonable premium is payable.(2) Where an insurance is effected on the terms that an additional premium is to bearranged in a

given event, and that event happens out no arrangement is made, then a reasonableadditionalpremium is



Types of Marine Insurance

1. Hull and Machinery

2 Cargo

3 P& I Cover

4 Other Thi rd Party Liabili ty Coverage

Towers Legal LiabilityShip Builders and Repairers Legal Liability

Terminal Operators Legal Liability

Marinas and Dock Owners Legal Liability

5 Specif ied Peri ls v Al l Risks

It is important to distinguish between marine policies that are specified perils v all risks.

A specified perils policy is one in which the insurer agrees to indemnify the assured for losses

caused by specific perils that are identified in the policy. The Canadian Hulls (Pacific) Clausesare examples of a specified perils policy. A loss must be caused by one of the specified perils in

order for it to be covered by the policy. Most hull and machinery policies on commercial vessels

are insured on a specified or named perils basis.

An all risks policy, on the other hand, provides much broader coverage. An all risks policy is onein which the insurer agrees to indemnify the assured “against all risks of loss or damage”. Things

that are not covered by an all risks policy need to be specifically excluded. Most cargo policies

and many policies on yachts and pleasure craft are all risks policies.



Parties

1 Assur ed

The assured, also called the insured, is the person who has taken out the policy and is obliged to pay the premium

.

2 Additional Assured

Policies of marine insurance frequently either name additional assureds or contain a clause that

extends the insurance to additional assureds by description.

3 Underwri ters

Underwriters are the entities that agree to indemnify the assured upon the happening of an

insuredloss. They are also called insurers. Underwriters can be individuals or corporations. Underwriters

at Lloyds are represented by various syndicates who negotiate and sign policies on behalf of the

“names” they represent.

It is not unusual for a policy of marine insurance to have more than one underwriter. In fact, it isusual for there to be more than one. The policy will name the underwriters and specify the extent

of each underwriters interest. The first underwriter named on the policy is the “lead” underwriter.

This is the underwriter that will make most decisions that are required to be made in the event ofa loss.

3.1 Underwriting Agents

Underwriting agents are entities that have the authority to enter into or sign insurance policies

on behalf of the underwriters. They sign as agent on behalf of the underwriters and, becausethey are agents only, they are not personally liable to the assured under the insurance contract.

An underwriting agent may represent more than one underwriter and may sign on behalf of

more than one underwriter.

3.2 P&I Clubs

P&I Clubs are similar to a mutual insurance company that offers third party liability coverage

toshipowners. The members of a P&I Club are shipowners. In a sense, the shipowners are

both insurers and assureds. P&I Clubs do not normally issue policies of insurance. Rather, theterms of the coverage they provide are usually set out in the club's Rules



3.3 Insurance Companie

The traditional insurance companies also operate in the marine insurance field as underwriters.

They may or may not use an underwriting agent

.

3.4 Brokers

Brokers play an important role in marine insurance. They are the agents of the assured. The

broker will meet with the assured to determine its insurance requirements. The broker will thencanvass the market to find underwriters willing to insure the assured and will negotiate terms

with

those underwriters. The broker may also become involved in the event of a loss by presenting the

loss to underwriters and negotiating on behalf of the assured.



The Marine Insurance Contract

Although the MIA regulates certain aspects of a marine insurance contract it generally preserves

freedom of contract. Therefore, the parties are, for the most part, free to determine the nature andextent of their obligations and responsibilities. The terms of the contract are usually contained inthe

policy of insurance. There may, however, be a slip or cover note which also evidences the terms

ofthe insurance contract.

When reviewing the provisions of the MIA it is extremely important to note that many sections

are

prefaced with “Unless the policy otherwise provides...”. This phrase preserves the parties rightsto

chose their own contractual terms and it is therefore always important to review the policy terms

tosee if they differ from the provisions of the MIA.

1 Requirements

ss.25-28 MIA

A contract of marine insurance is not admissible in evidence unless it is evidenced by a marine

policy. (s.25(1) MIA)A marine policy need not be executed and issued when the contract is made but may executed

and issued afterwards. (s25(2) MIA)A Marine policy must specify:

• the name of the insured,

• the subject matter insured (see also s.28 MIA),

• the perils insured against,

• the voyage or period covered,

• the sum insured, and

• the name of the insurer. (s.26 MIA)

A marine policy must be signed by the insurer. (s.27 MIA)

2 Time and Voyage Poli cies (s. 29 MIA)

A marine policy may be a voyage or time policy. If it uses the words “at and from” or “from” a

particular place to another place it is a voyage policy. If it insures the subject matter for a period of time it is a time policy.

A voyage policy comes to an end at the conclusion of the voyage. A time policy comes to an

end upon the expiry of the time specified.



2.1 Special Rules For Voyage Policies ss.40-46 MIA

For a voyage policy there is an implied term that the marine adventure will commence within a

reasonable time and if it is not, the insurer may avoid the contract unless the insurer waived

the right to avoid or was aware of the circumstances causing the delay. (s.40 MIA)

A voyage policy will not attach if the ship sails from or to places different from thosespecified. (s. 41 MIA)

Where after the commencement of the risk the destination of the ship is voluntarily changed

the insurer is discharged from all liability for any loss occurring on or after the time theintention to change is manifested, unless the policy provides otherwise. (s.42 MIA)

A deviation without lawful excuse from the agreed course or customary course discharges the

insurer from liability for any loss occurring on or after the deviation. Failure to call at the ports

of discharge in the order specified or in their geographical order will be a deviation. (s. 43MIA)

A voyage policy must be carried out with reasonable dispatch and the insurer is discharged

from all liability for any loss occurring on or after the time when the delay becomes

unreasonable. (s.44 MIA)Pursuant to s.45 MIA a deviation or delay is justified if it is

(a) authorised by any special term in the marine policy;(b) caused by circumstances beyond the control of the master and the master's

employer;

(c) reasonably necessary in order to comply with an express warranty or an implied

warranty;(d) reasonably necessary for the safety of the ship or subject-matter insured;

(e) for the purpose of saving human life or aiding a ship in distress where human life

may be in danger;(f) reasonably necessary for the purpose of obtaining medical aid for any person on

board the ship; or(g) caused by the barratrous conduct of the master or crew, if barratry is one of the

perils insured against.Where transhipment at an intermediate port or place is necessitated by a peril insured against

the insurer continues to be liable under the voyage policy for a loss occurring on or after the

date of transhipment. (s. 46 MIA)

3 Valued and Unvalued Pol icies (s.30 M IA)

A marine policy may be a valued or unvalued policy. If it specifies the agreed value of thesubject

matter it is a valued policy. If it does not specify the agreed valued but instead provides a limit of

the sum insured it is an unvalued policy.In the event of a total loss under a valued policy, the amount of the indemnity is the agreed

value.

In the event of a total loss under an unvalued policy, the amount of the indemnity is calculated pursuant to s. 19 MIA. In the case of a ship, the indemnity is the value of the ship at the time of



the commencement of the risk plus the insurance charge. In the case of cargo, the indemnity is

the

prime cost of the goods, plus the shipping and insurance expenses.

4 Floating Poli cies (s.31 M IA)

A marine policy may be a floating policy. A floating policy is one which leaves the name of the

ship or other particulars to be provided at a later time by declaration or endorsement. Floating

policies are frequently used by shippers who routinely ship cargo. Floating policies avoid ashipper having to negotiate a new policy for every shipment. Using a floating policy the essential

terms of the insurance contract are agreed in advance. Thereafter, all of the shippers goods will

be

covered by that policy provided the shipper declares the goods as required by the contract. Theshipper must declare all of the goods that are covered by the policy and their value. A failure to

properly declare will jeopardise the insurance coverage although an omission or error made in

good faith may be rectified even after a loss or the arrival of the goods. If a declaration of value

isnot made until after a loss or arrival of the goods, the indemnity is calculated as though the

policywas an unvalued policy.

.5 Construction of the Contract

The general rules of interpretation of contracts apply to insurance policies.

5.1 Intention of the Parties

The first rule of interpretation of contracts is that the court will consider the contract as a whole

to search for an interpretation that is consistent with and promotes the intention of the parties to

the contract. (Consolidated Bathurst v Mutual Boiler & Machinery, [1980] 1 S.C.R. 888) The

application of this general rule is not, however, always straight forward.

5.2 Narrow Construction of Exceptions

Generally, courts tend to broadly interpret coverage clauses and narrowly interpret exclusions.

( ReidCrowther v Simcoe & Erie General Insurance (1993)13 C.C.L.I. (2d) 16)

5.3 Contra Proferenten

If there is any ambiguity in the policy, such ambiguity is almost always resolved in favour of an

interpretation that benefits the insured. This is an application of the doctrine known as contra

proferentem, which means the words of a contract should be interpreted against the interests ofthe person who drafted it.

A review of the cases interpreting marine insurance policies will uncover many cases where the

courts seem to have used the doctrine of contra proferentem as a tool to avoid the plain meaning



of the policy and the intention of the parties as disclosed by the words used. Further, such a

review might lead one to believe that the doctrine of contra proferentem is the first rule of

interpretation of insurance contracts. This is, however, not the case. Consolidated Bathurst makesit very clear that the doctrine of contra proferentem is but one tool to determine the true intent of

the parties. The approach set out in Consolidated Bathurst was recently restated by the Supreme

Court of Canada in Bristle v Westbury Life Insurance Co., (1992) 13 C.C.L.I. (2d) 1. In that casethe Supreme Court noted that where two or more meanings are possible the court should selectthe meaning that promotes the intent of the parties. Further, the Supreme Court specifically said

that courts should avoid an interpretation which will give either a windfall to the insurer or an

unanticipated recovery to the insured

The Premium s

1 Amount of Premium s

If the premium is not specified in the policy a reasonable premium is payable

2 Obligation to Pay s

The obligation to pay the premium is the assured's although the broker can also be liable if it

effects the policy on behalf of the assured

.

3 Return of Premium s

A premium or part thereof is returnable to the assured where the policy contains a provisionrequiring the premium to be returned upon the happening of an event and that event happens.

(s.83 MIA)

A premium or part thereof is returnable to the assured where there has been a total failure of

consideration and there is no fraud or illegality on the part of the assured. (s.84 MIA)

A premium or part thereof is returnable to the assured where the circumstances described insubsections 2 through 11 of s. 85 MIA apply:

(2) Where a marine policy is void, or is avoided by the insurer as of thecommencement of the risk, and there is no fraud or illegality on the part of theinsured or the insured's agent, the premium is returnable.(3) Where the risk is not apportionable and has once attached, subsection (2) does

not apply and the premium is not returnable.(4) Where the subject-matter insured or part of the subject-matter insured hasnever been exposed to any peril insured against, the premium or a proportionate

part of the premium, as the case may be, is returnable.(5) Where the subject-matter is insured "lost or not lost" and has arrived at its



destination safely before the contract is concluded, subsection (4) does not applyand the premium is not returnable unless, at the time the contract is concluded,

the insurer knows of the safe arrival.(6) Where an insured has no insurable interest throughout the period of the risk,the premium is returnable.(7) Subsection (6) does not apply in respect of a contract by way of gaming or

wagering and the premium is not returnable.(8) Where an insured is over-insured under an unvalued policy, a proportionate

part of the premium is returnable.(9) Where an insured has a defeasible interest in the subject-matter insured that isterminated during the period of the risk, the premium is not returnable.(10) Subject to subsections (2) to (9), where an insured is over-insured by double

insurance, a proportionate part of the premiums is returnable.(11) Subsection (10) does not apply

(a) where the double insurance is knowingly effected by the insured, inwhich case none of the premiums is returnable; and

(b) where the policies are effected at different times and either the earlier policy has at any time borne the entire risk or a claim has been paid on

the earlier policy in respect of the full sum insured by it, in which case the premium for the earlier policy is not returnable and the premium for thelater policy is returnable.

4 If Insurer Fails to Return Premium

It is vitally important that an insurer return the premium when required to do so. This is so

because many breaches of the express or implied terms of the policy ( i.e. non-disclosure or

misrepresentation) have the effect of giving the insurer the right to elect to void the contractrather than voiding the contract ab initio. The return of the premium is evidence that the insurer

elects to treat the insurance contract as void. An insurer who fails to return the premium will beheld to have waived its right to treat the contract as voided. (Neepawa Yacht v LaurentianInsurance, (1994) D.R.S. 95-04330; Harold A Burner v Sun Insurance, [1952] I.L.R. 1-069)that

it



Losses and Measure of Indemnity

1 Duty of Assured to mitigate

.It is the duty of an insured and an insured's agent to take such measures as

are reasonable for the purpose of averting or diminishing a loss under themarine policy.

2 Total Loss

(1) A loss is an actual total loss if the subject-matter insured is destroyed or is

so damaged as to cease to be a thing of the kind insured or if the insured isirretrievably deprived of the subject-matter.

(2) Where a ship engaged in a marine adventure is missing and no news of the shipis received within a reasonable period, an actual total loss may be presumed.

2.1 Measure of Indemnity. Subject to this Act and any express provision in the policy, the measure of

indemnity in respect of a total loss of the subject-matter insured is(a) in the case of an unvalued policy, the insurable value of the subject-matter; and(b) in the case of a valued policy, the value of the subject-matter specified by the

policy.

3 Constructive Total Loss

In essence, a constructive total loss occurs when the insured property is still in existence but

either cannot be retrieved or the cost of retrieving and/or repairing it will exceed its value.

Constructive total loss is defined and dealt with in s. 57 MIA but the parties are free tothemselves define those situations that will constitute a constructive total loss under their policy.

. (1) Unless a marine policy otherwise provides, a loss is a constructive total lossif the subject-matter insured is reasonably abandoned because the actual total loss

of the subject-matter appears unavoidable or the preservation of the subject-matterfrom actual total loss would entail costs exceeding its value when the costs are

incurred.

(2) Without limiting the generality of subsection (1), a loss is a constructive totalloss if(a) in the case of a ship or goods, the insured is deprived of possession of the ship

or goods by reason of a peril insured against and either the insured is unlikely torecover the ship or goods or the cost of recovery would exceed the value of the ship



or goods when recovered;(b) in the case of a ship, the ship is so damaged by a peril insured against that the

cost of repairing it would exceed the value of the ship when repaired; or(c) in the case of goods, the goods are so damaged that the cost of repairing andforwarding them to their destination would exceed the value of the goods onarrival.

(3) For the purposes of paragraph (2)(b), in estimating the cost of repairing a ship,no deduction may be made in respect of general average contributions to the repairs

payable by other interested persons, but account is to be taken of the cost of futuresalvage operations and of any future general average contributions to which theship would be liable if repaired.

3.1 Abandonment

Where there is a constructive total loss the assured may either treat the loss as a partial loss or

may treat it as a total loss. If the assured elects to treat it as a total loss, the assured must

abandon the property to its insurers by delivering a notice of abandonment. The insurer may

either accept the notice of abandonment or reject it. If the insurer accepts the notice it becomesobligated to pay as though there was a total loss and it acquires the interest of the assured in the

property.

(1) An insured may treat a constructive total loss as a partial loss or may

abandon the subject-matter insured to the insurer and treat the constructive totalloss as an actual total loss.

(2) Subject to this section and section 59, an insured who elects to abandon the

subject-matter insured to the insurer must give a notice of abandonment to theinsurer with reasonable diligence after the insured receives reliable information ofthe loss.

(3) An insured who receives doubtful information of a loss is entitled to a

reasonable time to make inquiries before giving a notice of abandonment.(4) An insured may give a notice of abandonment orally or in writing, or partlyorally and partly in writing, and in any terms that indicate the insured's intention toabandon unconditionally the insured interest in the subject-matter to the insurer.

(5) If an insured fails to give a notice of abandonment as required by this section,

the constructive total loss may be treated only as a partial loss.(1) An insured is not required to give a notice of abandonment to the insurer if(a) the loss is an actual total loss;

(b) notice is waived by the insurer; or(c) at the time the insured receives information of the loss, there is no possibility of

benefit to the insurer if notice were given to the insurer.(2) An insurer who has reinsured a risk is not required to give a notice ofabandonment to the reinsurer..(1) If an insured gives a notice of abandonment as required by section 58, therights of the insured are not prejudiced by a refusal of the insurer to accept the

abandonment.



(2) An acceptance of an abandonment may be either express or implied from theconduct of the insurer, but the mere silence of an insurer after a notice of

abandonment is given does not constitute an acceptance.(3) On acceptance of an abandonment, the abandonment is irrevocable.(4) On acceptance of an abandonment, the insurer(a) conclusively admits liability for the loss and the sufficiency of the notice of

abandonment; and(b) is entitled to acquire the interest of the insured in whatever remains of thesubject-matter insured, including all proprietary rights incidental thereto.(5) On acceptance of the abandonment of a ship, the insurer is entitled to(a) any freight being earned at the time of, or earned subsequent to, the casualtycausing the loss, less the costs incurred in earning it after the casualty; and

(b) if the ship is carrying the shipowner's goods, reasonable remuneration for thecarriage of the goods subsequent to the casualty.

.4 Partial L osses

• (1) A partial loss is any loss that is not a total loss.

(2) Where insured goods reach their destination in specie but cannot be identified

by reason of obliteration of marks or otherwise, the loss, if any, is a partial loss.

(3) Unless a marine policy otherwise provides, an insured who brings an action fora total loss but establishes only a partial loss may recover for a partial loss.

4.1 Measure of Indemnity for Partial Loss

4.1.1 Of Ship

1. Subject to any express provision in the marine policy, the measure of indemnityin respect of a partial loss of a ship is(a) where the ship is repaired, the reasonable cost of the repairs less the customary

deductions, but not exceeding the sum insured in respect of any one casualty;(b) where the ship is partially repaired, the aggregate of the reasonable cost of the

repairs, as determined under paragraph (a), and the reasonable depreciation, if any,arising from the unrepaired damage, the aggregate not exceeding the cost, asdetermined under paragraph (a), of repairing the whole damage; and

(c) where the ship is not repaired and is not sold in a damaged state during the risk,the reasonable depreciation arising from the unrepaired damage, but not exceeding

the cost, as determined under paragraph (a), of repairing the damage.

4.1.2 Of Goods

2. (1) Subject to any express provision in the policy, the measure of indemnity inrespect of a partial loss of goods or movables is(a) where part of the goods or movables insured by an unvalued policy is totally

lost, the insurable value of the part lost, ascertained as in the case of a total loss;(b) where part of the goods or movables insured by a valued policy is totally lost,



that proportion of the value of the goods or movables specified by the policy thatthe insurable value of the part lost bears to the insurable value of all the goods or

movables, ascertained as in the case of an unvalued policy; and

(c) where the whole or any part of the goods or movables is delivered damaged atits destination, that proportion of the insurable value of all the goods or movables,

in the case of an unvalued policy, or the value of all the goods or movablesspecified by the policy, in the case of a valued policy, that the difference betweenthe gross value of all the goods or movables in a sound condition at that destinationand their gross value in their damaged condition at that destination bears to thegross value of all the goods or movables in a sound condition at that destination.

5 Sue and Labour Expenses

1. (1) Where a marine policy contains a sue and labour clause, the engagement

thereby entered into is supplementary to the contract and the insured may recoverfrom the insurer any expenses properly incurred under the clause, even if the

insurer has paid for a total loss of the subject-matter insured or the subject-matterinsured is warranted free from particular average, either wholly or under aspecified percentage.

(2) General average losses, general average contributions, salvage charges, andexpenses incurred for the purpose of averting or diminishing a loss by a peril notinsured against are not recoverable under a sue and labour clause.

6 Thir d Party L iabili ty

1. Subject to any express provision in the policy, the measure of indemnity in

respect of any liability to a third party that is expressly insured against by a marine policy is the amount paid or payable by the insured to the third party in respect of the

liability.

7 Proportional Liabil ity

. Where a loss is recoverable under a marine policy, the insurer, or each insurerif there is more than one, is liable for that proportion of the measure of indemnityin respect of the loss that the amount subscribed by the insurer is of(a) in the case of an unvalued policy, the insurable value of the subject-matter; and(b) in the case of a valued policy, the value of the subject-matter specified by the

Policy.

8 Successive Losses

. (1) Subject to this Act and unless the marine policy otherwise provides, aninsurer is liable for successive losses, even if the total amount of the losses exceedsthe sum insured.

(2) Where, under a marine policy, a partial loss that has not been repaired or

otherwise made good is followed by a total loss, the insurer is liable only for the



total loss.

(3) Nothing in subsections (1) and (2) shall be construed as affecting the liability ofan insurer under a sue and labour clause.

”

Warranties

1 What is a warranty

A warranty is defined in s.32 MIA as follows:. (1) In this section and sections 33 to 39, "warranty" means a promissorywarranty by which the insured

(a) undertakes that some particular thing will or will not be done or that somecondition will be fulfilled; or

(b) affirms or negates the existence of particular facts.(2) A warranty may be an express warranty or an implied warranty.

2 Impli ed Warranties

There are three warranties implied by the MIA. They are the warranty of legality, neutrality and

Seaworthiness.

2.1 Legality s.34 MIA

. There is an implied warranty in every marine policy that the marine adventureinsured is lawful and, in so far as the insured has control, will be carried out in a

lawful manner.

The warranty of legality is one which is often expressly included in policies as well as implied.

Where there is an express warranty of legality it will have precedence over the implied warrantyto the extent the two are inconsistent.

In Harbour Inn Seafoods v Switzerland (1991) 6 ANZ Ins. 61-048, it was held that a breach of

the collision regulations was a breach of the implied warranty of legality.In James Yachts Ltd. v Thames and Mersey Marine Insurance Co. [1976] I.L.R. 1-751, it washeld that a breach of Municipal by-laws was a breach of the implied warranty of legality that

discharged the insurer from liability.

2.2 Neutrality s.36 MIA

(1) Where in any marine policy insurable property is expressly warranted to be



neutral, there is an implied condition in the policy(a) that the property will have a neutral character at the commencement of the risk

and that, in so far as the insured has control, that character will be preserved duringthe risk; and(b) where the property is a ship, that, in so far as the insured has control, the papersnecessary to establish the neutrality of the ship will be carried on the ship and will

not be falsified or suppressed and no simulated papers will be used.(2) If any loss occurs through a breach of the implied condition referred to in

paragraph (1)(b), the insurer may avoid the contract.

2.3 Seaworthiness ss.37 & 38 MIA

(1) There is an implied warranty in every voyage policy that, at the

commencement of the voyage, the ship will be seaworthy for the purpose of the particular marine adventure insured.

(2) Where a voyage policy attaches while the ship is in port, there is an implied

warranty in the policy that the ship will, at the commencement of the risk, bereasonably fit to encounter the ordinary perils of the port.

(3) Where a voyage policy relates to a voyage performed in different stages duringwhich the ship requires different or further preparation or equipment, there is animplied warranty in the policy that, at the commencement of each stage, the ship is

seaworthy for the purposes of that stage.

(4)There is no implied warranty in any time policy that the ship will be seaworthy

at any stage of the marine adventure, but where, with the privity of the insured, theship is sent to sea in an unseaworthy state, the insurer is not liable for any lossattributable to unseaworthiness.

(5)A ship is deemed to be seaworthy if it is reasonably fit in all respects to

encounter the ordinary perils of the seas of the marine adventure insured.• There is no implied warranty in any marine policy on insurable propertyother than a ship, that the insurable property is seaworthy.(2) There is an implied warranty in every voyage policy on insurable property,

other than a ship, that, at the commencement of the voyage, the ship is seaworthyand reasonably fit to carry the insurable property to the destination contemplated

by the policy.

The implied warranty of seaworthiness applies with full effect only to voyage policies. Thewarranty is that the ship will be seaworthy "at the commencement of the voyage" for the

particular adventure insured. A seaworthy ship is one that is "reasonably fit in all respects toencounter the ordinary perils of the adventure insured". In a time policy there is no warranty ofseaworthiness but "where, with the privity of the assured, the ship is sent to sea in an

unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness". Thus,

in a voyage policy the insurer needs to prove only one thing; that the ship was unseaworthy at

the commencement of the voyage. In a time policy, on the other hand, the insurer needs to provethree things; that the ship was unseaworthy, that the unseaworthiness caused the loss, and that

the assured was privy to the unseaworthy state of the ship.



The warranty of seaworthiness relates not only to the hull but also to the machinery and

equipment, the crew, and the way in which a ship is loaded (or overloaded). In Laing v Boreal

Pacific (2000) 264 N.R. 378, which concerned a time policy, it was held that an overloadedvessel was unseaworthy to the knowledge of the owner and the insurer was entitled to avoid

liability.

There is no implied warranty of seaworthiness with respect to property other than a ship, i.e. tocargo but, if the policy is a voyage policy there is an implied warranty that the ship isseaworthy.

.3 Express Warranties

3.1 s.33 MIA

(1) An express warranty may be in any form of words from which the intention

to warrant may be inferred.

(2) An express warranty must be included in, or written on, the marine policy or becontained in a document incorporated by reference into the policy

i.

3.2 Express Warranty v Suspensive Conditions

Pursuant to s. 33, an express warranty may be in any form of words from which the intention

to warrant may be inferred. Unfortunately, it has proven difficult for insurers to find the exact

words that will lead to the required inference. Words such as “warranted that” have been heldto not necessarily delineate a warranty (Century Insurance Company of Canada v Case

Existological Laboratories Ltd. (The "BAMCELL II"), [1983] 2 S.C.R. 47) Similarly, thewords “warranted free from any claim...” were held not to delineate a warranty in Tulloch v

Canada, (1989) 96 N.R. 51. In both of these cases the courts held that it is necessary to

distinguish between a true warranty and warranty that merely delimits and is part of thedescription of the risk. The latter is often referred to as a “suspensive condition”. The

difference between the two is the consequence that flows from the breach. A breach of a true

warranty discharges the insurer from liability from the time of the breach. A breach of a

suspensive condition, on the other hand, merely interrupts or suspends the coverage during thecurrency of the breach.

The words of the policy must therefore be carefully considered to determine whether a particular provision is a true warranty. Where the words used specifically provide that a breachof a particular provision will discharge the insurer from liability from the date of the breach,

then the provision will most likely be construed as a true warranty. However, if the

consequences of a breach are not described, regard must be had to the nature of the provision



3.3 Examples of Express Warranties

The number and type of express warranties are limited only by the imagination and ingenuity

of underwriters. Almost anything can be made to be an express warranty provided the proper

words are used. Notwithstanding this total freedom to make almost anything a warranty most

policies contain relatively few. The more common express warranties are:• Navigation and trading warranties that limit the geographical areas in which a vessel

may operate;

• Laid up and out of commission warranties that require a vessel to be laid up for adefined period or generally;

• Identity of the master warranties that require a named person to command the vessel;

• Towing warranties that prohibit the insured vessel from being towed except where

customary or when the vessel is in need of assistance;

• Private pleasure use warranties that prohibit any commercial use of a yacht; and

• Warranties regarding surveys and inspections that require inspections to be conducted

or recommendations by surveyors to be complied with.

3.4 Consequences of Breach

4.1 s.39 M IA

(1) Subject to this section, a warranty must be exactly complied with, whether

or not it is material to the risk.

(2) Subject to any express provision in the marine policy or any waiver by theinsurer, where a warranty is not exactly complied with, the breach of the warrantydischarges the insurer from liability for any loss occurring on or after the date of

the breach, but does not affect any liability incurred by the insurer before thatdate.

(3) A warranty that the subject-matter insured is "well" or "in good safety" on a particular day is not breached if the subject-matter is safe at any time during thatday.

(4) A breach of a warranty is excused if, because of a change of circumstances,the warranty ceases to be applicable to the circumstances contemplated by thecontract or if compliance with the warranty is rendered unlawful by anysubsequent law.

(5) It is no defence to a breach of a warranty that the breach was remedied and thewarranty complied with before any loss was incurred.

It should be noted that a breach of a warranty discharges an insurer from liability from the date

of the breach. This is the case even if the breach is remedied before any loss. The insurer isalso not required to make an election as with a failure to disclose material facts or a

misrepresentation. Moreover, there is no requirement that the warranty be material to the risk.

The consequences of a breach of warranty may only be avoided by an express relieving provision in the policy or by a waiver of the breach by the insurer. A waiver will only be found



where the insurer has full knowledge of the breach and demonstrates an intention to treat the

contract as continuing. (Daneau v Laurent GendronLtee, [1964] Ll. L. R. 220)7.2.5The exclusion for loss or damage to machinery not otherwise covered by a specified peril should be considered in light of the modern “inchmaree” clauses found in most policies. The

“inchmaree” clauses are not standardised but they generally extend coverage to loss or damage



Prescription Periods and Notice Requirements

1 Prescri ption by Statute

The MIA does not prescribe a limitation period for a claim under a marine insurance policy. This

omission has resulted in a great deal of uncertainty as to whether there is a statutory limitation

period applicable to such claims. This uncertainty arises because of the decision of the SupremeCourt of Canada in Ordon v Grail , [1998] 3 S.C.R. 437. Until the decision in Ordon v Grail it

was thought that the limitation periods prescribed by provincial statutes would apply to marine

insurance claims. Within British Columbia, section 24 of the Insurance Act provides for a one

year limitation period from the time of the furnishing of a proof of loss. However, with thedecision of the Supreme Court of Canada in Ordon v Grail , [1998] 3 S.C.R. 437, it is now very

doubtful whether provincial limitation periods are constitutionally applicable to mattersotherwise

governed by Canadian maritime law, including marine insurance.

The question of the applicable limitation period is further complicated by section 39 of the

Federal Court Act . Section 39(1) provides that the laws relating to limitation "in force in any province between subject and subject" apply to proceedings in the Federal Court "in respect of

any cause of action arising in that province". Section 39(2) provides that a cause of action arising

Giaschi& Margoli s 26 www.AdmiraltyLaw.com

otherwise than within a province is subject to a six year limitation period.

At first reading section 39 of the Federal Court Act would seem to incorporate by reference theapplicable provincial limitation period. It may, in fact, do so but only in respect of actions

commenced in the Federal Court. It does not apply to actions commenced in any other court.The application of provincial limitation periods to maritime matters was recently considered by

the Federal Court in the case of Geist et.al v Vancouver Marina et al. (June 21, 2000) Registry

No. T-1411-97). In this case ProthonotaryHargrave of the Federal Court held, on the basis of theOrdon v Grail , that the British Columbia Limitation Act was constitutionally inapplicable to a

claim in contract and tort against a marina for damage to a vessel. Similar reasoning would likely

apply in respect of a claim under a marine insurance policy. However, the Prothonotary also held

that because of s. 39 (1) of the Federal Court Act the British Columbia Limitation Act wasincorporated as federal law and therefore did apply to the action commenced in the Federal

Court.The important consequence of Geist et.al v Vancouver Marina et al. is that the limitation periodapplicable to a marine insurance claim may depend on the court in which the action is

commenced and where the cause of action arose. If the action is commenced in the Federal Court

and the cause of action arose solely within one province, the applicable limitation period could

bethat prescribed by the province in which the cause of action arose. If the action is commenced in

the Federal Court and the cause of action arose otherwise than within a single province, the

http://www.admiraltylaw.com/






applicable limitation period could be the six years prescribed by section 39(2) of the Federal

Court Act . If the action is commenced in a court other than the Federal Court section 39 has no

application and the provincial limitation period is constitutionally inapplicable. In such a casethere is either no prescribed limitation period or the matter is governed by common law equitable

considerations of undue delay and prejudice rather than definite time limits. ( Roscoe's Admiralty

Practice, (5th ed.) at p.102; The Kong Magnus, [1891] P. 223)

.2 Contractual L imi tation and Notice Peri ods

Some policies of marine insurance expressly provide for actions against insurers to be

commenced within a set period of time (contractual limitation periods) or for notice of claims or

possible claims to be given within a set period of time (contractual notice periods). Such

contractual terms have been upheld and enforced by the courts. (See for example Robertson vPugh (1888) 15 S.C.R. 706)

The validity of contractual limitation periods depends, in part, on the legislation that governs the

particular insurance contract. As we have seen, the legislation governing the insurance contract

may depend on the court in which the action is commenced as well as the place where the causeof action arose. Insofar as a matter might be governed by the Insurance Act of British Columbia,

any contractual term limiting the time for bringing an action would be null and void to the extent

that it is contrary to the one year period prescribed by section 24. This follows from section 4 ofthe Act which provides that the statutory limitation period applies “notwithstanding any law or

contract to the contrary”.

3 Relief Against Forfeitur

Pursuant to the common law and law of equity as well as various statutes of generalapplication,

the Courts have a power and discretion to relieve against forfeiture. There have been many casesin which this discretion has been exercised to prevent an insurer from avoiding an insurance policy for breach of a condition, including a condition relating to notice. The predominant factor

leading the Courts to exercise this discretion is lack of prejudice. The insurer cannot simply rely

on the failure to give notice or the passage of time. Rather, the insurer must show that it has, infact, been prejudiced in some material way, such as by a judgement having been rendered against

the assured or by a disappearance of material witnesses or evidence. It is only when the insurer

can show actual prejudice that the Courts will not exercise the discretion in favour of the assured

and relieve against the forfeiture of the insurance policy.



Underinsurance, Overinsurance and Double Insurance

1 Underinsurance s.88 MIA

. Where an insured is insured for a sum that is less than the insurable value of thesubject-matter insured, in the case of an unvalued policy, or less than the value of the

subject-matter insured specified by the policy, in the case of a valued policy, theinsured is deemed to be self-insured in respect of the uninsured difference.

2 Overinsurance

85(8) Where an insured is over-insured under an unvalued policy, a proportionate

part of the premium is returnable\

3 Double Insurance s

(1) An insured is over-insured by double insurance if two or more marine policies are effected by or on behalf of the insured on the same marine adventure

and interest or part thereof and the sums insured exceed the indemnity allowed bythis Act.

3.1 Rights of Insured

86(2) An insured who is over-insured by double insurance

(a) may claim payment from the insurers in any order, unless the marine policyunder which the claim is made provides otherwise, but may not receive more thanthe indemnity allowed by this Act;

(b) if claiming under a valued policy, shall give credit, as against the valuespecified in the policy, for any sum received by the insured under any other policy

without regard to the actual value of the subject-matter insured;(c) if claiming under an unvalued policy, shall give credit, as against the full

insurable value, for any sum received by the insured under any other policy; and(d ) is deemed to hold any sum received in excess of the indemnity allowed by thisAct in trust for the insurers, according to their right of contribution among

themselves.

3.2 Rights of Insurers

(1) Where an insured is over-insured by double insurance, each insurer is liable,as between the insurer and the other insurers, to contribute rateably to the payment

of a loss in proportion to the amount for which the insurer is liable under theinsurer's contract



.(2) An insurer who contributes more to the payment of a loss than required by

subsection (1) is entitled to bring an action against the other insurers forcontribution and to such other remedies as a surety is entitled to for paying morethan the surety's proportion of a debt.

MARKETING STRATEGY

Strategic management has been utilized by organizations for formulating strategies. In general,strategic management is a process of formulating, choosing, and implementing strategy to reach

organizations’ missions or objective accompanying with the analyses of internal and external factors.

Since no business is operated under unlimited sources, quite often, a company is forced to adopt themost effective strategy in a certain functional level in order to maximize its efficiency

1 Strategic management

Strategic management is an academic term for strategic planning which is preferred to be used in the business world; nevertheless, strategic planning is referred to strategy formulation only.Strategic management enables organizations to be proactive by implementing long-term planning.

Fred R. David (2009) described strategic management as the

”

An important guideline for strategic management is to be open-mined. Managers should realizeexternal and internal changes, and receive new technologies and new concepts in order to adapt to thesurrounding changes.Strategic management relies on the communication and cooperation between manager and

employees. Recognizing that low-level managers and employees are the people who are familiar withthe organization’s internal factors and operations, and who finally implement the formulatedstrategies, organizations begin to decentralize strategic management. In other words, low-levelmanagers, and employees are involving more heavily in strategic management processes.



2 strategy thinking

Strategic thinking, the prime task of strategic management, was once described as the input of

strategic planning. (Fred 2009; Briefing Notes: What is Strategic Thinking 2001.) Strategic thinkingaims to help managers, who influence the company’s direction, to be proactive and creative

.Strategic thinking originates from military practices. The highest rated strategic book is The Art ofWar written by an ancient Chinese, SunTzu. In his book, he emphasizes the importance of

positioning in military strategy, and advocates for placing an army according to both the objective

conditions in the physical environment and the subjective beliefs of other competitive actors in thatenvironment. (The Art of War 2010.)

Thus, strategic thinking should consider a company’s strengths and weakness, products and

offerings, environment of the industry, market and customer, competitors and substitutes, suppliersand buyers. (Briefing Notes: What is Strategic Thinking 2001.)2.1.2 Strategic management process

Strategic management processes begin first with environment scanning where mangers scan theexternal and internal factors that affect the operation of the organization. Meanwhile, basing on theinternal analysis of vision and mission for an organization, manager must set the long-term objective

towards which the strategy needs to achieve.Afterwards, strategy management will be performed in three parts: strategic formulation, strategic

implementation, and strategic evaluation.

During strategic formulation, managers need to understand the vision and mission of theorganization, set long-term objectives, identify external opportunities and threats, analyse internal

strengths and weakness, and generate alternative strategies. Since all resources for the organization

operations are limited, managers often unable to conduct all the strategies. Therefore, the strategyformulation requires



managers to choose the best strategy for the organization to implement to narrow the strategy to aspecific product or service, market, resources and technologies over an extended period. (Fred 2009.)



After determining the strategy to adopt, managers come to the strategy implementation stage, where

the chosen strategy should be actualized. In other words, a series of programs or activities should be

defined into detailed actions and movements.Strategy evaluation, the final stage of the strategic management process, refers to collect informationabout the strategy, and to obtain feedback for later improving. Strategic evaluation activities include

1) reviewing external and internal factors, 2) measuring performance and 3) taking corrective actions.

3 Environmental scanning

Environmental scanning of a company consists of two parts: external environmental analysis andinternal environmental analysis. In general, external analyses enable a company to find theopportunities and threats it may face. Internal analyses, on the other hand, assess the organization’s

own strengths and weakness. (Fred 2009.)

External factors

Summarized by Wheelen and Hunger (2008), external factors that affect hugely on business can beidentified as social environment factors and industry environment factors.

1) Social environment factors

Generally, the social environment is analysed in country level. It consists the elements such as

political and legal issues, economic factors, social and cultural impacts, technologic deSaylor URL:



E-mail Marketing

1 Introduction

At its core, e-mail marketing is a tool for customer relationship management (CRM). Usedeffectively, this extension of permission-based marketing can deliver one of the highest returns oninvestment (ROI) of any eMarketing activity. Simply put, e-mail marketing is a form of direct

marketing that utilizes electronic means to deliver commercial messages to an audience. It is one ofthe oldest and yet still one of the most powerful of all eMarketing tactics. The power comes from thefact that it is the following:• Extremely cost effective due to a low cost per contact

• Highly targeted

• Customizable on a mass scale

• Completely measurable

Furthermore, e-mail marketing’s main strength is that it takes advantage of a customer’s most

prolific touch point with the Internet: their in-box. E-mail marketing is a tool for buildingrelationships with both existing and potential customers. It should maximize the retention and value

of these customers, which should ultimately velopment, and environmental circumstances

2History

LEARNING OBJECTIVE1. Understand how e-mail developed into an important eMarketing tool.

E-mail is probably ubiquitous to you, but there was a time when there was no e-mail!E-mail actually predates the Internet and was first used way back in 1961 as a way for users of the samecomputer to leave messages for each other. Ray Tomlinson is credited with creating the first network e-mail

application in 1971. He initiated the use of the “@” sign and the address structure that we use today(username@hostname).[1] E-mail was used to send messages to computers on the same network and is still usedfor this purpose today.It was only in 1993 that large network service providers, such as America Online and Delphi, started toconnect their proprietary e-mail systems to the Internet. This began the large-scale adoption of Internet e-mail as a global standard. Coupled with standards that had been created in the preceding twenty years,the Internet allowed users on different networks to send each other messages.



The first e-mail spam dates back to 1978. Spam is defined as unsolicited commercial or bulk e-mail.In fact, more than 97 percent of all e-mails sent over the Net are spam! [2]

Direct marketing has long played an integral part in marketing campaigns, but the high cost meantthat only large companies were able to pursue it. However, with the growth of the Internet, and theuse of e-mail to market directly to consumers, marketers have found these costs dropping and theeffectiveness increasing.



, 3 how its work

LEARNING OBJECTIVE1. Understand the different types of e-mail and how they are used.

If you consider marketing as communicating with current and potential customers, you will see thatevery e-mail that is sent from your organization should be considered as part of your holistic e-mailmarketing strategy. Does that sound a little complicated? Consider an online retailer,http://www.zappos.com. Zappos is an online shoe retailer. What are the ways that, as a customer,

you might receive e-mails from Zappos?

• Transactional e-mails. When you place an order, there will be a number of e-mails that you receive,from confirmation of your order to notice of shipping. Should you need to return an item, you will nodoubt communicate with Zappos via e-mail.• Newsletters. These are e-mails that are sent to provide information and keep customers informed.They do not necessarily carry an overt promotion but instead ensure that a customer is in regular contact

with the brand. These build relationships and foster trust between customers and their chosen brands.

• Promotional e-mails. Should Zappos have a summer sale, they will send an e-mail relating directly tothat promotion.

The following are examples of other e-mails sent by Zappos:• E-mails to suppliers

• Communication with affiliates

All the communication sent out can be used to convey your marketing message. Every touch point will market the organization. However, here we will focus on commercial e-mails.There are two types of commercial e-mails:Saylor URL: http://www.saylor.org/books Saylor.org 14

http://www.zappos.com/

http://www.saylor.org/books




http://www.zappos.com/



1. Promotional e-mails. These are more direct and are geared at enticing the user to take an immediateaction. They always feature a call to action and are designed around a specific goal.2. Retention-based e-mails. Also referred to as newsletters, these may include promotional messages butshould be focused on providing information of value to the user, geared at building a long-termrelationship with the user.

As with all eMarketing activities, careful planning is called for, as is careful testing and evaluating, soas to optimize your revenue. E-mail marketing may be highly cost effective, but the cost of getting it

wrong can be very high indeed.



4 Nine Steps to Executing an E-mail Campaign

LEARNING OBJECTIVES1. Understand what the nine steps of an e-mail campaign are

.

2. Learn how to prepare for an e-mail campaign.

3. Learn best practices for executing an e-mail campaign

.

4. Learn what steps to take after the completion of the campaign.

There are nine steps to executing an e-mail campaign properly. These nine steps should be considered best practices for e-mail campaigns. If followed closely, a marketer can expect great results.The nine steps are as follows and will be addressed in the following subsections:

1. Strategic planning

2. Definition of list

3. Creative execution

4. Integration of campaign with other channels

5. Personalization of the message

6. Deployment

7. Interaction handling

8. Generation of reports

9. Analysis of results

marine insurance and smooth selling

Documents